Reflections on an International Environmental Court

Abstract

International law governing the settlement of disputes through law-based forums, such as courts, tribunals and arbitral tribunals, is fraught with limitations that are becoming especially apparent with respect to disputes that involve the protection of the environment. However, despite the deficiencies of the law, international courts and tribunals have issued judgements in disputes involving the protection of the environment. At the global level, the International Court of Justice (ICJ), the Appellate Body of the World Trade Organization (WTO) and the Tribunal for the Law of the Sea (ITLOS) have handed down decisions in relevant cases. In addition, other legal forums can also be called upon to decide cases involving international environmental law. Such forums include the Environmental Chamber of the ICJ and the Permanent Court of Arbitration (PCA) under its general facilities and under the Environmental Facility that it is planning to establish. Similarly, special bodies, such as the United Nations Compensation Commission (UNCC), may decide on cases. Moreover, regional forums such as the European Court of Human Rights (ECHR), the Inter-American Court of Human Rights and the Court of Justice of the European Community (ECJ) have ruled on cases involving international environmental law. Despite the these developments, calls for the establishment of an international environmental court at the global level persist. Several arguments have been advanced to justify the establishment of an international environmental court, for example the very many pressing environmental problems that exist today and the need for a bench consisting of experts in international environmental law to consider these problems, the need for individuals and groups to have access to environmental justice at the international level, the need to enable international organizations to be parties to disputes related to the protection of the environment and the need for dispute settlement procedures that enable the common interest in the environment to be addressed. Arguments against the establishment of an international environmental court have been advanced as well. This publication explores the arguments for and against the establishment of an international environmental court, examining topics such as the definition of an international environmental dispute and the concomitant expertise required on the bench, fragmentation and its root causes, access to justice and the representation of community interests. The author argues that the establishment of an international environmental court is not the most desirable option and she suggests that it might be more fruitful if we consider developments in environmental law, as well as in other relevant areas of international law, from a different perspective, namely, that of administrative law, and reassess the relationship between international and national law. Such an approach, she argues, is warranted if, inter alia, viable means for resolving environmental disputes that may arise are to be identified.